Jingle all the way (to the Employment Tribunal)

Issues for employers to consider in respect of the annual Christmas party

Whilst it may, indeed, be the season to be jolly, every year the work Christmas party raises a multitude of potential problems for employers. From issues relating to religious discrimination to employees not turning up for work the next day, it is a minefield for HR professionals to navigate their way through in order to avoid finding themselves at the Employment Tribunal a few months later.

Invitations

Employers should make sure that they invite all employees to the Christmas party. Do not forget those on sick leave (although much will depend on the nature of their illness) or family leave (such as maternity leave) as this could give rise to allegations of discrimination. On the other hand, do not make attendance mandatory or ostracise those who do not attend.  Employees may have a good reason for not attending.  For example, non-Christian employees may feel uncomfortable attending a Christian celebration and Muslim employees may object to going to an event at which alcohol is served.  In addition, if the party takes place outside of working hours, many employees will have responsibilities outside of work, such as child care obligations, which prevent them from attending.

Venue

It is important that the venue chosen for the Christmas party is accessible by all employees. It should be one that is suitable irrespective of age (for example, if you have employees who are under the age of 18, do not choose a venue with an “over 18s only” policy) and also accessible by those with a disability. It goes without saying that employers should avoid venues which could offend those of a particular religion or sex (for example, a strip club) as otherwise they could face claims of discrimination or harassment. Similarly, whilst it is may be challenging to prevent employees from having ‘one tipple too many’ at the party, employers should consider limiting the amount of free alcohol available and provide non-alcoholic options too (not just for those that don’t drink for religious/medical reasons). Employers should also watch out for those who are not yet old enough to drink.

Duty of care

Employers should be mindful of the fact that they have a duty to take reasonable care of the health, safety and welfare of all employees at work – this includes the Christmas party too as it is likely to be viewed as an extension of the workplace. This means that, among other things, employers should consider how employees are going to get home safely or perhaps ending the party before public transport stops operating or encouraging employees to leave their cars at home and take a licensed taxi home.

Misconduct

Generally, conduct which takes place at a Christmas party – even if that party is held off site or outside of working hours – can be dealt with in the same way as if it was carried out at the workplace itself. Employers can take disciplinary action against any employees who display poor behaviour during and even after the Christmas party. Indeed, in the case of Gimson v Display By Design Ltd [ET/1900336/2012], an employee punched a colleague in the face whilst walking home from the work Christmas party. The employer dismissed the employee for gross misconduct and he claimed unfair dismissal. The Employment Tribunal found that because the events were sufficiently closely connected to work, his dismissal was fair.

Vicarious liability

Employers can be held vicariously liable for discriminatory acts committed by their employees at the Christmas party. The claim most likely to arise is sexual harassment but employers should also remember that under the Equality Act 2010, protection from harassment also extends to unwanted conduct related to age, disability, gender reassignment, race, religion or belief and sexual orientation. To mitigate against this, employers should ensure that their harassment policies are up to date and that they bring them to the attention of all employees and that they remind employees of them in the run up to the Christmas party. Employers may, potentially, have a defence to harassment claims if they can show that they took all reasonable steps to prevent harassment occurring and having robust policies in place is a factor that can assist in demonstrating this.

However, employers will be relieved that recent case law found that an employer was not vicariously liable for injuries caused by an employee after a work Christmas party had ended. In Bellman v Northampton Recruitment [[2016] EWHC 3104 (QB)], following a work Christmas party, a manager and the managing director, along with a number of other colleagues, went to a hotel and continued drinking until the managing director assaulted the manager at around 3 am. The assault caused serious brain injury to the manager and he sued the employer for damages. The court was asked to decide whether at the time the managing director struck the blow, he was “acting in the course of employment” (making the employer vicariously liable for his actions). The High Court decided that if the blow had been struck during the Christmas party itself, the employer would have been liable, however, because the assault occurred in the hotel after the party and was, essentially, a private drinking session, the employer was not vicariously liable.  Nevertheless, each case will turn on its own facts so there are no guarantees that an employer will not be found liable in similar circumstances.

The morning after

The morning after the Christmas party can cause issues for employers too if employees are absent or turn up for work late.  Employers will need to decide whether they will show any leniency in relation to this.  They may wish to “dock pay” as appropriate, but before doing so they must make sure that they have the right to do this in their employment contracts. Alternatively, employers may wish to make it clear to employees in advance of the Christmas party that disciplinary action may be taken against anyone who fails to turn up or who turns up late the next day, where there is reason to believe that this is due to over-consumption of alcohol or otherwise connected with their attendance at the Christmas party. Employers should also be on the lookout for employees who arrive at work still drunk, especially if they drive or operate machinery as part of their job. 

Social media

With the use of social media constantly on the increase, employers should ensure that they have a robust social media policy in place in advance of the party and that they remind their employees of the potential consequences of breaching it. Posts should not bring the employer into disrepute. In addition, whilst it might seem a good idea at the time to upload photos of the drunken antics of colleagues on to social media sites, this could raise data protection issues if those colleagues have not consented to this.  

This article was originally published in Adiona Magazine at http://www.flippubs.com/publication/index.php?i=441642&m=37649&l=1&p=38&pre=#{"page":38,"issue_id":457723}